Menefee v. State , 129 Tex. Crim. 375 ( 1935 )

Appellant insists that we were in error in holding that the trial court did not err in declining to submit to the jury his special requested instruction on unavoidable accident. An unavoidable accident is one that could not reasonably be anticipated. If it occurs without fault or failure of duty on the part of the person to whom the occurrence is attributable, there is no wrong.

Section 1, Chapter 215, Acts, Reg. Sess., 42nd Leg., provides as follows: "Section 1. All vehicles used for the transportation of pupils to and/or from any school or college, shall have a sign on the front and rear and on each side of said vehicle, showing the words 'School Bus' and said words shall be plainly readable in letters not less than six (6) inches in height. It shall be the duty of the operator of such 'School Bus' vehicle to see that such signs are displayed as above provided, and it shall he unlawful to operate any such 'School Bus' vehicle unless such signs are so displayed thereon. When any such 'School Bus' vehicle stops, every operator of a motor vehicle or motorcycle approaching the same from any direction shall bring such motor vehicle or motorcycle to a full stop before proceeding in any direction; and in event such 'School Bus' vehicle is receiving and/or discharging passengers, the said operator of such motor vehicle or motorcycle shall not start up or attempt to pass in any direction until the said 'School Bus' vehicle has finished receiving and/or discharging its passengers."

Section 2 makes any party who violates any of the provisions of Section 1 guilty of a misdemeanor.

In the case under consideration there had been full compliance with the law so far as the school bus was concerned with reference to the signs on the sides and ends of the bus. The law demanded that appellant also obey the law, and not attempt to pass until all passengers were discharged or received. Appellant saw the school bus and knew it to be such. State's witnesses testified that he did not stop his car until after the child was struck. Appellant and his witnesses testified that he stopped the car, but had started it again, and that the child that was injured ran in front of it from around the bus. There is no question but that children were at the time getting off the bus. Appellant was charged with knowledge of the law which forbade him passing the bus while passengers were being received or discharged. He disobeyed said penal statute. He could reasonably have anticipated injury to a child. There was a failure of duty on his part and a violation of the statute when he attempted to pass the bus under the circumstances here shown. We think the doctrine of unavoidable accident not applicable here.

Appellant calls attention to Hoffman v. State, 85 Tex. Crim. 11,209 S.W. 747, and expresses the view that our present opinion is in conflict with said case. We do not so understand it. There both the injured party and the accused were claiming that each was free from blame, and attributing the accident to the negligence of the other. There was no such violation of a positive statute such as we find here.

The court's charge is defective in some particulars, but appellant did not object to the same, as required by the statute (Art. 658 Cow. C. P.), and it is not regarded as so fundamentally erroneous as to call for reversal.

The motion for rehearing is overruled.

Overruled.